Judge considers motion to dismiss capital murder retrial

Last week, a state appellate court ordered the release of Alabama death row inmate Anthony Ray Hinton, who awaited execution for 30 years after he was found guilty of a 1985 capital murder in Jefferson County. Heeding a U.S. Supreme Court ruling determining Hinton’s right to a fair trial had been violated, prosecutors admitted bullets found on the scene of two separate homicides linked to Hinton did not come from a gun they originally entered into evidence as the murder weapon.

Hinton’s appeal and exoneration was championed by attorneys from the Equal Justice Initiative, a Montgomery-based nonprofit that provides legal aid to “indigent defendants and prisoners who have been denied fair and just treatment in the legal system.” The EJI reported that Hinton became 152nd person exonerated from death row nationwide since 1983, and the sixth from Alabama.

Locally, a Mobile County Circuit Court judge is considering a similar ruling for another defendant. Last month, attorneys for William John Ziegler filed a motion to dismiss after the state testified in January that it couldn’t account for at least seven pieces of exculpatory evidence used to originally convict him of capital murder in 2001 — a conviction that ultimately resulted in the death penalty, but was overturned in 2012 by Circuit Court Judge Sarah Stewart.

Defense attorneys, who are not affiliated with the Equal Justice Initiative, are attempting to have Ziegler freed and the charge dismissed before it reaches a jury again.

In January, a team of prosecutors led by Assistant Attorney General Stephanie Billingslea told Stewart the state could no longer account for: the original affidavit filed to obtain a search warrant for Ziegler’s home and car owned by a co-defendant; any audio recordings from the interrogation of any of the witnesses who eventually pinned the crime on Ziegler; the victim’s clothing; police photographs of a car defense attorneys argue was used to transport the victim and would undermine the prosecution’s version of events; an evidence bag a witness testified at the Rule 32 hearing contained a bloody sweatshirt; a “be on the lookout” issued for the car; or any records of initial interviews with a witness who later recanted her testimony at the Rule 32 hearing.

William Ziegler was convicted of capital murder in 2001 and sentenced to death. Ten years later a judge threw out the conviction, but now, the Attorney General's office is pursuing a retrial.

Ziegler was convicted of the 2000 murder of Russell Baker, who was beaten, stabbed more than 100 times and nearly decapitated after an alcohol-fueled Mardi Gras party in West Mobile. The Rule 32 hearing found co-defendants and witnesses only implicated Ziegler after giving initial statements that would have absolved him of the murder.

The case was investigated by the Mobile County Sheriff’s Office, including former Detective Dale Kohn, whose niece Dawn — in an apparent conflict of interest — was a witness to the night’s events.

In January, Billinglea admitted “some pieces of evidence, we don’t have,” but also suggested some of the evidence never existed.

Lawrence Battiste, a former MCSO investigator who currently presides over the county’s juvenile probation program, testified in January about his role assisting Det. Kohn with the initial investigation. He told the court he could not find the original affidavit for a search warrant of Bennett’s car “or any other files related to the case.”

Battiste, in what MSCO Spokesperson Lori Myles later said “never happens,” told the court he took all his investigative files with him when he left the MCSO in 2004. Since, they have been stored in the attic of his home.

Battiste also testified Kohn was present at least one of the crime scenes and took a statement from his own niece.

David Phillips, a 21-year veteran of the MCSO, also testified he had little recollection of gathering evidence from co-defendant Jay Bennett’s car in 2000. Defense attorneys have presented a narrative of the crime prosecutors apparently can’t refute: rather than their claim Ziegler killed Baker in the woods near his apartment, the defense argues co-defendants Bennett and William Randall left with Baker in Bennett’s car, where he was either killed or his body was transported to the site where it was later discovered. Randall and Bennett were sentenced to life in prison and 20 years, respectively, after testifying against Ziegler at the original trial.

A defense witness — who repossessed Bennett’s car after he defaulted on payments following his arrest — recalled during the Rule 32 trial that police returned it to his custody in “disarray,” and that the carpet and seats were covered in dark “blood” stains.

But Phillips told the court in January he didn’t “recall anything standing out,” about the vehicle, and although “our normal procedure is to take photographs of all angels of the vehicle, including the interior,” during an investigation, the MCSO or the District Attorney did not possess any photos of the car. It was also never documented any photographs were ever taken, Phillips said.

In their motion to dismiss, defense attorneys contend “any such re-trial would again subject Mr. Ziegler to violations of his rights to due process and a fair trial by virtue of the state’s numerous, pervasive and egregious failures to preserve clearly relevant, and ultimately exculpatory, evidence necessary for Mr. Ziegler to receive a fair trial … To be clear, Mr. Ziegler contends that the remaining evidence that has been preserved would lead a reasonable jury to acquit Mr. Ziegler of the charges brought by the state.”

A status hearing is scheduled in Ziegler’s case next week, but last month, defense attorney Nick Lagemann urged Stewart to rule on the motion.

“We’re talking multiple pieces of evidence,” he said. “We’re not at first trial, we’re at retrial. What matters to Mr. Ziegler now is to make sure he is entitled to his constitutional rights for due process and fairness.”

Elsewhere in state appeals, attorneys for death row inmate Bill Kuenzel pled his case to the Alabama Court of Criminal Appeals Tuesday, arguing that a kew witness initially told a grand jury she wasn’t sure who she saw at the scene of a 1987 shooting death of a Sylacauga store clerk. Kuenzel was actually scheduled to be executed in March, but prior to the date Alabama voluntarily agreed to stay executions until the U.S. Supreme Court could review issues with lethal injection.

Correction: The original version of this story reported Ziegler’s next hearing was scheduled in May. It is April 16.